Hinman v. Westinghouse Electric Co.

Supreme Court of California · Torts

TortsRespondeat superiorGoing and coming ruleScope of employmentVicarious liabilityrespondeat superiorgoing and coming rulescope of employment

Facts

Plaintiff, a Los Angeles police officer, was struck and permanently injured by a car driven by Herman, a Westinghouse employee, while Herman was returning home from a job site. Herman did not report to the office before or after work; instead, he traveled directly between home and the assigned job site until the job was completed or he was told otherwise. Under the union contract applicable to this job, which was 15 to 20 miles from Los Angeles City Hall, Herman received one and a half hours per day as round-trip travel time and $1.30 for travel expense. Westinghouse did not control Herman's route or method of transportation.

Issue

Was Herman acting within the scope of his employment, as a matter of law, when he injured plaintiff while driving home from the job site, where Westinghouse paid both travel time and travel expense for that commute? More specifically, did the going and coming rule bar respondeat superior liability on these facts?

Rule

The employer's vicarious liability under respondeat superior extends to risks inherent in or created by the enterprise. An exception to the going and coming rule applies where the trip provides an incidental benefit to the employer not common to ordinary commutes; and where the employer and employee have made travel time part of the working day by contract, the employer is to be treated as such during that travel time so long as the employee is using the time for the designated purpose.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Sierra Crest Mechanical assigned Noah Vega to a construction project in Bakersfield while he lived in Fresno. Under a union agreement, Sierra Crest paid Noah 90 minutes of daily travel time plus a fixed travel allowance, and Noah drove directly home after his shift when he negligently injured a cyclist.

Is Sierra Crest most likely vicariously liable for Noah's negligence?

Explanation. The majority held that when the employer and employee have made travel time part of the working day by contract, the employee is treated as acting within employment during that travel time so long as he is using it for the designated purpose, such as returning home. The employer's lack of control over route or method of travel does not defeat liability because the doctrine rests on enterprise risk, not actual control. (Derived from Hinman v. Westinghouse Electric Co. (n.d.).)